Transcription

1 INTRODUCING THE ESSENCE OF LAWYERING IN AMERICA TO CHINESE LAW STUDENTS Lawrence K. Hellman Dean and Professor of Law Oklahoma City University A group of law students from Nankai University in Tianjin, China, spent a month at Oklahoma City University in the summer of 2007 to receive an introduction to the American legal system. In preparing the program, we asked ourselves, Where should we begin? Despite its enormous economic progress, China s legal system is still undeveloped. The concept of private property has only recently been introduced. Private lawyers and private litigation are still something of a rarity. (China has fewer than 200,000 lawyers for a population of 1.3 billion; the United States has roughly five times as many lawyers for a population that is only one-fourth the size of China s.) The adversarial system of adjudication does not exist in China. How could the Chinese students begin to comprehend the America legal system? To understand how the American legal system works, one must first understand the role of lawyers in that system. After all, lawyers drive the system, whether they work in private practice, government service, a corporate legal department, or a public interest setting. So we started the program for the Chinese students with a short course on the American model of lawyering. It became my task to teach it in just nine hours spread over only three days. The task turned out to be a rewarding one. The students were highly intelligent, well-motivated, respectful, and curious. It was enjoyable to address their insightful questions and see them get it. After a brief review of the regulation of admission to 1

2 practice and the disciplinary system governing lawyers, we surveyed the range of responsibilities of American lawyers as set forth in the American Bar Association s Model Rules of Professional Conduct. Because of time limitations, the method of instruction was primarily lecture, including classic examples of how the Rules apply in practice. There were ample opportunities for questions. These responsibilities were organized under three broad principles: (1) A lawyer s first obligation is to his or her clients. (2) Lawyers owe certain obligations to the legal system that operate to limit the obligations owed to clients. (3) Even though they owe obligations to clients and to the legal system, lawyers are independent from both. The survey began by observing that lawyers in America function primarily on behalf of some other person or entity a client. Thus, principles of the law of agency apply with full force to the work of lawyers. These principles also permeate the Rules of Professional Conduct. They explain, for example, the duties of loyalty (found in our conflict of interest rules) and confidentiality. The same principles also explain the concept of the lawyer as an actor independent from both the client and the state. And yet, the lawyer has duties to both the client and the state. It is helpful, however, to consider the first duty as that which is owed to the client. The client determines the objectives of a representation and must be consulted with respect to the means by which the objectives will be pursued. Rule 1.2(a). The lawyer is expected to assist the client in formulating objectives and making decisions concerning the representation, Rule 1.4, and to give the client independent professional advice as to the wisdom of what the client thinks about these matters. Rule 2.1. If client and lawyer cannot agree on the objectives and means, either party to the client-lawyer relationship 2

3 may veto it before it is consummated or (with certain limitations) terminate it after it has come into existence. Rule If the relationship moves forward, the lawyer is expected to pursue the client s objectives with reasonable competence, Rule 1.1, and diligence, Rule 1.3, and without subjecting herself to compromising influences. Rule 1.7. The primacy of the lawyer s duty to clients is emphasized in the obligations of confidentiality, which extend far beyond the contours of the attorney-client privilege and work product doctrine. Rule 1.6. So the first principle of lawyering in America is that lawyers serve the interests of their clients. In doing so, they are understood to be serving the interests of society. But there are limitations. If the client s objective is unlawful, the lawyer must so advise the client, Rule 2.1, and refuse to assist in the pursuit of such objective. Rule 1.2(d) and Rule 1.16(a). In fact, whether the client is an organization (such as a corporation) or an individual, the lawyer is expected to protect the client from the likely harmful consequences that will follow from unlawful conduct. Rule 1.13 and Rule 1.6 cmt. [2]. If the client wishes to abuse the legal system, the lawyer must not be an aider and abettor. The lawyer-agent s role neither requires nor allows bringing a frivolous claim or asserting a frivolous defense, Rule 3.1, failing to expedite litigation, Rule 3.2, obstructing access to or falsifying evidence, Rule 3.4, or deceiving a tribunal. Rule 3.3. The second principle of lawyering in America, then, is that, in addition to their duty to clients, lawyers have certain narrowly-defined duties to the legal system and tribunals. These duties limit the scope of one s obligation and are designed to serve the 3

4 interests of society in maintaining the rule of law as well as trust and confidence in both the criminal and civil justice systems. The reconciliation of the first two principles of lawyering (one s primary duty is to client, but there are also certain duties to tribunals and the legal system that impose limitations on that primary duty) was illustrated through a careful examination of the exceptions to the duty of confidentiality codified in Rule 1.6(b). The duty of confidentiality does not prevent a lawyer from using or disclosing information relating to a representation when doing so is reasonably deemed necessary to prevent reasonably certain death or substantial bodily harm, Rule 1.6(b)(1), or to prevent a client from committing certain crimes and frauds. Rule 1.6(b)(2) & (3). With respect to the crime of perjury before a tribunal, disclosure is mandatory. Rule 3.3(b). Lawyers are at liberty to disclose confidential information about a client to the extent doing so is reasonably deemed necessary to defend the lawyer against claims of wrongdoing (perhaps in alleged complicity with a client), Rule 1.6(b)(5), to assert claims or defenses against a client, Rule 1.6(b)(5), to obtain legal advice concerning the lawyer s obligations under the Rules of Professional Conduct, Rule 1.6(b)(4), or to comply with the Rules, other law, or a court order. Rule 1.6(b)(6). This leads to the third core principle of lawyering in America: a lawyer is independent and autonomous from the client as well as the state, while simultaneously owing obligations to both. A lawyer cannot assist a client s wrongdoing. Rule 1.2(d). The lawyer is an independent actor in these regards. Lawyers independence from their clients is affirmed by Rule 1.2(b), which declares that one s representation of a client does not constitute endorsement of the client s views or activities. Lawyers autonomy 4

5 with respect to clients is further emphasized by Rule 1.16(b)(4), which allows them to decline a representation if the client insists on taking action that the lawyer considers repugnant. Lawyers in America also have independence from the state. For example, a lawyer may contest a law or court order directed at the lawyer or the client, Rule 1.2(d), including an order to disclose confidential information about a client. Rule 1.6 cmt. [13]. We thought it was also useful to point out that subordinate lawyers are even autonomous from supervisory lawyers to a certain extent, in that they are not expected or even allowed to follow a supervisor s directive unless it is clearly consistent with the Rules or at least based on a reasonable resolution of an arguable question of professional duty. Rule 5.2(b). This is true for government lawyers, as well, including prosecutors. It was clear from the questions that were asked that the students comprehended the intersecting relationships that exist between lawyer and client, lawyer and tribunal, and lawyer and society. Their understanding of these relationships was also evident when, in the fourth week of their program, they prepared and presented a mock criminal trial based on a simulated record. These principles of legal ethics had been further developed in weeks 2 and 3 through an introduction to legal research and writing with American legal materials. Based on this experience, we conclude that the lecture technique for introducing the role of the lawyer in the American legal system was successful in facilitating the absorption of lawyering skills (research, writing, advocacy) with which the students previously had been unfamiliar. 5

The Foundation of Juvenile Practice Part 1: You are Adversary Counsel, NOT a GAL! Private Bar Certification Forensic Exercise November 19, 2014 Role of Juvenile Defense Counsel: Forensic Exercise: Question

Complying with the FCPA- An Exploration of Ethical Issues Raised by Recent Cases Are the Professional Conduct Rules Any Different? By Roseann B. Termini, Esq. rbtermini@widener.edu www.fortipublications.com

NAPD Formal Ethics Opinion 14-1 Social workers and other healthcare professionals may not report child or elder abuse without the express contemporaneous permission of the lawyer for whom they are doing

91 THE AMERICAN LAW INSTITUTE Continuing Legal Education Estate Planning for the Family Business Owner Cosponsored by the ABA Section of Real Property, Trust and Estate Law and the ABA Section of Taxation

The Role of Defense Counsel in Ineffective Assistance of Counsel Claims I. Every criminal defense lawyer will, at sometime or another, be challenged as ineffective it comes with the territory. It is natural

Ethical Considerations for the Estate Attorney Trusts and Estates Practice is Difficult to Categorize Clients are generally older, but many younger people are planning for retirement and family members.

CODE OF ETHICS AND PROFESSIONAL RESPONSIBILITY FOR DELAWARE PARALEGALS PREAMBLE The Delaware Paralegal Association advocates that paralegals have an ethical and professional responsibility in the delivery

Reflections on Ethical Issues In the Tripartite Relationship [click] By Bruce A. Campbell 1 Introduction In most areas of the practice of law, there are a number of ethical issues that arise on a frequent

[Type text] U.S. Department of Justice United States Attorney Southern District of New York The Silvio J. Mollo Building One Saint Andrew s Plaza New York, New York 10007 February 9, 2016 By Electronic

Lawyers as Gatekeepers The SEC s New Focus on Inside and Outside Counsel Julie M. Allen Frank Zarb National Conference of the Society of Corporate Secretaries and Governance Professionals June 28, 2014

INDIANA PARALEGAL ASSOCIATION CODE OF ETHICS AND PROFESSIONAL RESPONSIBILITY AND RULES FOR ENFORCEMENT PREAMBLE The Indiana Paralegal Association ("IPA") is a professional organization comprised of individual

ISBA Advisory Opinion on Professional Conduct ISBA Advisory Opinions on Professional Conduct are prepared as an educational service to members of the ISBA. While the Opinions express the ISBA interpretation

The Supreme Court of South Carolina LAWYER MENTORING PROGRAM UNIFORM MENTORING PLAN INTRODUCTION Under the terms of Rule 425, SCACR, establishing the Lawyer Mentoring Program, the Court has set out nine

Executive Summary of the Texas Uniform Collaborative Law Act By Lawrence R. Maxwell, Jr. * This paper will provide an introduction to the collaborative dispute resolution process and address the future

THE PHILADELPHIA BAR ASSOCIATION PROFESSIONAL GUIDANCE COMMITTEE Opinion 2009-11 (December 2009) The inquirer represented the Decedent in 1999 when he prepared her will. At the time, the Decedent was elderly

ISBA Advisory Opinion on Professional Conduct ISBA Advisory Opinions on Professional Conduct are prepared as an educational service to members of the ISBA. While the Opinions express the ISBA interpretation

Form 15-3 Form 15-3 This form is written for a divorce case but may be reworded as appropriate for any other family law situation. Purpose [Name of wife] and [name of husband] (the parties ) have chosen

LAWYER TO LAWYER MENTORING PROGRAM WORKSHEET Q INTRODUCTION TO REPORTING LAWYER MISCONDUCT OR UNFITNESS Worksheet Q is intended to facilitate a discussion about a lawyer s obligation to report lawyer misconduct

CONFLICTING ROLES AND RESPONSIBILITIES OF THE GENERAL COUNSEL AND THEIR ETHICAL IMPLICATIONS Presented to National Association of College and University Attorneys June 24-27, 2009 Presented by Robert Lavet,

Ethical Considerations for Tribal Lawyers and Judges The 19th Annual Tribal Law and Government Conference The Future of Indian Education University of Kansas March 13, 2015 Elizabeth Ann Kronk Warner Associate

AUG 0 3 2009 THE AMERICAN LAW INSTITUTE A Concise Restatement of THE LAW GOVERNING LAWYERS Compiled by VINCENT R. JOHNSON Professor of Law St. Mary's University School of Law and SUSAN SAAB FORTNEY George

AS APPROVED BY CONVOCATION, MARCH 25, 2004 (new/amended rules and commentary for rule 2.02) When Client an Organization (1.1) Notwithstanding that the instructions may be received from an officer, employee,

Question 4 Austin had been a practicing physician before he became a lawyer. Although he no longer practices medicine, he serves on a local medical association committee that works to further the rights

Ethics Opinion 000210 FACTS: Attorney B successfully represented to conclusion a sophisticated client in a criminal matter, but was paid only a small portion of the substantial bill incurred. Following

Rules of Professional Conduct For Attorneys Wisconsin Supreme Court Rule 20 Read It, Know It, Live It Presented by Mark Gumz with the assistance of Hannah Schieber SCR 20: More than just 40+ pages of fine

GUIDANCE FOR EMPLOYED BARRISTERS Part 1. General 1.1 This guidance has been issued by the Professional Standards Committee, the Professional Conduct and Complaints Committee and the Employed Barristers

Code of Ethics Old North State Trust, LLC (the Company ) has adopted this Code of Ethics in recognition of the principle that all Supervised Persons (as defined below) of the Company have a fiduciary duty

Ethical Considerations in Dealing with Expert Witnesses By Thomas M. Fitzpatrick tom@tal-fitzlaw.com Thomas M. Fitzpatrick is a graduate of the University of Montana (1973) and the University of Chicago

Nebraska Ethics Advisory Opinion for Lawyers No. 91-3 I. AS COUNSEL FOR A PLAINTIFF, AN ATTORNEY MAY NOT ETHICALLY INTERVIEW PRESENT OR FORMER EMPLOYEES OF A DEFENDANT CORPORATION IF: (a) THE EMPLOYEES

April 1, 2015 Making It To The Finish Line & How Not To Stumble Over Your Ethical Obligations When Handling Internal Investigations, Whistleblower Complaints & Social Media A Presentation to ACC-GNY Kathleen

Arizona Rules of the Supreme Court 38(d) (d) Clinical Law Professors and Law Students 1. Purpose. This rule is adopted to encourage law schools to provide clinical instruction of varying kinds and to facilitate

UNIVERSITY OF MARYLAND FRANCIS KING CAREY SCHOOL OF LAW 2016-2017 CLINIC & LEGAL THEORY & PRACTICE COURSES CARDIN REQUIREMENT The University of Maryland Francis King Carey School of Law operates one of

ETHICAL CONSIDERATIONS IN SURETY COUNSEL REPRESENTING PRINCIPAL IN PRINCIPAL S AFFIRMATIVE CLAIM AND SURETY COUNSEL SEEKING TO RECOVER A FIDELITY LOSS FROM A THIRD PARTY INVOLVING AN INSURED S SUBSTANTIAL

CUBIC ENERGY, INC. Code of Business Conduct and Ethics Introduction Our Company s reputation for honesty and integrity is the sum of the personal reputations of our directors, officers and employees. To

IN THE CIRCUIT COURT OF COUNTY, ARKANSAS DIVISION PLAINTIFF vs. CASE NO. CV DEFENDANT DEFENDANT S RESPONSES TO PLAINTIFF S FIRST INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS COMES NOW, Defendant,

A Guide for the General Practitioner: Ethical Issues When Evaluating, Selecting and Handling Personal Injury Case I. Finding the Case: For the general practitioner of law, most personal injury claims come

This is not your grandfather s litigation. BUT ediscovery Services are not legal services. TYPES OF ETHICAL ISSUES THAT MIGHT ARISE IN THE CONTEXT OF ediscovery: Document collection Privacy issues Inadvertent

9 THE AMERICAN LAW INSTITUTE Continuing Legal Education Third Party Litigation Funding: Pros, Cons, and How It Works November 1, 2012 Telephone Seminar/Audio Webcast Alternative Litigation Funding Conference

PAST CRIME, CRIME FRAUD, FUTURE CRIME: WHERE ARE WE? By Abraham A. Dash and Franklin A. Dash Mr. Abraham Dash is a Professor Emeritus at the University of Maryland School of Law and Mr. Franklin Dash is

THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK COMMITTEE ON PROFESSIONAL AND JUDICIAL ETHICS FORMAL OPINION 2009-6 AGGREGATE SETTLEMENTS TOPIC: Multiple Representations; Aggregate Settlements; Advance

MPRE Sample Test Questions The following sample questions are examples of test questions similar to those on the MPRE. While these sample questions illustrate the kinds of questions that will appear on

Copyright February 1997 - State Bar of California David has been arrested for and charged with murder and robbery. David made a telephone call to Attorney, a member of the California Bar. Attorney came

(129th General Assembly) (Amended Substitute House Bill Number 380) AN ACT To enact sections 2307.951, 2307.952, 2307.953, and 2307.954 of the Revised Code to require claimants in asbestos tort actions

FLETCHER LAWYERS & ETHICS FINAL EXAM Instructions: Answer the questions below in essay form. You may draw upon any and all of the materials assigned in this class. You may draw upon THE COMMON LAW of this

An Ounce of Prevention: Effective Use of the Attorney/Client Privilege 1) The Attorney Client Privilege: What is It? Communication of facts to attorney to obtain legal advice and Communication of legal

CLIENT INFORMATION: GUIDELINES ON ADMINISTRATION & BILLING As updated from time-to-time for billing rates and responsible attorney and, following actual notice to the client. This agreement forms the basis

ORANGE COUNTY BAR ASSOCIATION Formal Opinion 2011-01 (Collaborative Family Law) Issue: Can a family lawyer enter into a collaborative law agreement consistent with her ethical duties, notwithstanding the

Ethics in Foreclosure By Louis S. Pettey Louis S. Pettey is a president of the Gaithersburg, Maryland, firm of Heise Jorgensen and Stefanelli PA and vice-chair of the Ethics and Professionalism Committee.

Nebraska Ethics Advisory Opinion for Lawyers No. 09-03 IF THE VICTIM IN A CRIMINAL CASE THAT A COUNTY ATTORNEY IS PROSECUTING HAS RETAINED COUNSEL TO REPRESENT HIM IN A CIVIL CASE ARISING FROM THE SAME

NEW JERSEY FAMILY COLLABORATIVE LAW ACT An Act concerning family collaborative law and supplementing Title 2A of the New Jersey Statutes. Be It Enacted by the Senate and General Assembly of the State of

TESTIMONY OF ROBERT M. A. JOHNSON ANOKA COUNTY ATTORNEY ANOKA, MINNESOTA JUNE 4, 2009 ON INDIGENT REPRESENTATION: A GROWING NATIONAL CRISIS TESTIMONY OF ROBERT M.A. JOHNSON FOR THE HOUSE JUDICIARY SUBCOMMITTEE

to Legal Aid 2010 Legal Aid Education P, Session 1, Page 1 Session 1 Governance as Leadership What is governance? Governance is the exercise of authority, direction and control of an organization in order